ADR and Dispute Resolution for Dispute Arisen Between Employee and Employer – ACAS View

1. Evaluate the purpose of Alternative Dispute Resolution (ADR) and, with particular reference to the services provided by Acas, assess to what extent it is a successful means of resolving disputes outside the formal judicial process?

2. Explain why European Union law takes precedence over domestic law in the United Kingdom?

Alternative dispute resolution system is procedure and technique which try to resolve the dispute between parties out of the court (Davidson, 2000). This is more flexible and speedy process than court proceeding. This proceeding has various benefits. In case of dispute relating to employment or dispute between employee and employer it is very effective. Different organizations are now a day’s very much concern about the Alternative dispute resolution because of its benefits. Generally employees in their contracts include this time of clause to resolve dispute through the arbitration procedure. Normally the negotiation, mediation and arbitration procedures are applied in case of employment related issues. Negation is the best method where two parties shift their stand at least to some extent that the dispute between them can be resolve (Murray et al., 1996). The trade unions performed a critical role in service related matters. Organizations like ACSAS performed very well in settling dispute between the employer and employee though the alternative dispute resolution system.

According to this organisation there are several causes for the dispute in the work place. The dispute in work place can be arise between worker with other worker or between worker or manager etc. the main reasons are injustice relating to treatment, insufficiency in training, inadequate work environment, unequal treatment between the employees, harassments, overloaded work pressure etc (Acas.org.uk, 2015).  This organize provide some solution that can minimize the problem. The problems can be resolved by appointing manager with sound management power, by encouraging the employees for their good work, reduce the excess work pressure which will enhance the quality , clearly explain the employment contract and specify the dispute resolution forum on that regard. This forum has two different types of services for dispute resolution. First one is individual dispute and second one is collective dispute. Individual dispute means one employee has issue with the employer. For this kind of disputes Alternative dispute resolution is one of the best solutions.  Before going to any employment tribunal it is better to resolve the dispute though mediation or arbitration. It is more cheap and swift procedure and less formal. The conciliation procedure can be done in some stages like prior to file the complaint to the employment tribunal it can be resolved through the conciliation procedure or through other ADR procedure. By this both party can appoint their conciliator with the help of ACAS or like originations. ACAS encourage the party to resolve their dispute through the informal way to dispute resolution (Acas.org.uk, 2015). For individual compliant there are 3 solutions: early conciliation, mediation and arbitration.  Mediation is also a very appropriate method in this regard. The parties can appoint a mediator who is an independent person and can help impartially in this situation. One or more mediator can also be appointed and the mediators can consult by themselves and pronounce solution on the disputed matters. Mediators are well versed with law and expert in the subject matter so they can provide better solution for the dispute.  The solution of this mediation procedure is legally binding in nature so therefore parties are bound to maintain the solution incurred from the mediation procedure. The workplace mediation is much helpful in maintaining the relationships and maintaining the work environment (Acas.org.uk, 2015). Different data indicates that 80% of disputes are resolved by the mediation process in the work place. Arbitration is the procedure where an impartial person called arbitrator is appointed to resolve the dispute. The arbitrators are very competent persons to resolve disputes and take compact decision regarding the dispute. The arbitrator will heard bath the side of employees and employers then take the decision in an impartial way. The arbitral award has its binding force towards the parties like court procedure. So arbitration can be the best solution for dispute settlement.

Importance of Alternative Dispute Resolution

In case of collective dispute there are procedure of collective conciliation, mediation and arbitration. Collective dispute means when a group of employees filed a complaint against employer. For collective conciliation generally trade union plays an awesome role in dispute resolution. But maximum cases it was seen that they can’t reach to any solution in this regard. It an impartial person is appointed then it gives much more effective ways of dispute resolution. Generally collective arbitration when negation failed between the employer and employees. Arbitration is very speedy trail and ACAS can guarantee it within 21days. Within this period then will provide remedy through arbitration procedure. Collective mediation is a process which is helpful for the organisation to resolve dispute with their employees. An impartial capable third party will listen to the problem and settle the dispute in best possible way. Mediation procedure starts only when the parties are agree to go for mediation. If they agree voluntarily then the decision of the mediation procedure is binding on them.

There was a landmark dispute resolution case through the ACAS in regard to employment related problems. The case was from Thomas Keating ltd. They contact with ACAS for the dispute arising out of the matter relating to annual pay. A collective conciliation service was provided by the institution by very eminent and capable conciliators. Senior staffs and the managers engage in this conciliation procedure and after in the consultation session.  After all this the dispute was resolved in an appropriate manner and both the disputing parties are happy. This procedure help a lot to keep the work environment properly and side by side resolve the dispute too.

There is no doubt that alternative dispute resolution systems are became very important in modern era. Maximum cases relating to workplace issues are resolved by the ADR. The reason is that the organizations don’t want to go for the long lasting court procedures. The court procedures are costly too. So employees also interested in ADR. Disputes and litigation generally disrepute the position of the company or organisation, but ADR maintain the confidentiality of the matter. So the companies are interested in resolving dispute through ADR. In maximum cases it was observed that ADR resolved the dispute in such a manner that both the parties are benefited by the decision. Many cases resolved in negotiation stage. Both the parties change their position a little and get the benefit of the settlement of the dispute outside the court.  It is obvious that court decisions are more binding in nature but it take lots of time and cost. Alternative Dispute Resolution is a system which helps a lot to maintain the relation between the employer and employee as well as help to maintain the good work environment. Speedy remedies are always welcomed by all the organizations so it is right to state that in relation to employment related dispute alternative dispute resolution is the best and authentic process to resolve the matters.

Labor law of United Kingdom controls the associations surrounded by employees, employer and unions of the employees that are trade union. The workers of UK take pleasure in different employment rights, which are initiated from a variety of Acts, policy and common laws. This comprises the right to least salary that is of £6.50 for every employee who is over the age of 21year as mentioned in the National Minimum Wage Act 1998 (Lewis, 1986). The Working Time Regulations 1998 provide the right for having 28 paid holidays, splits from work, and effort to get relief from extremely extended working shifts. The Pensions Act 2008 provides the right to be instinctively registered in a basic industrial allowance after retirement. The Equality Act 2010 provides that employees are not unreasonably subjected to discrimination of the basis of their sexual category, social group, sexual preferences, and attitude, believes etc, while employers must surely provide the needs of physically challenged people to rescue them from social discrimination.

Supremacy of EU Laws

Additional than private rights, all the staffs have the right to add their view in regard to pronouncement about their rights all the way through the process of collective bargaining. Employees possess the right to take resolution about their policies relating to pension under the Pensions Act 2004. In some corporations employees have a right to take part in an election for the selecting their administrator or managerial people (Collins, Ewing and McColgan, 2012). In company which has more than 50 people must be well informed and look for recommendation about major fiscal developments or complexities. This happens through a increasingly growing quantity of professional gathering must be happened through the request of the staffs. Though, the UK has not so far implements these suggestions which are maintained by the EU which specifies to involve that all employees have a vote for their employers’ board of directors beside shareholders (Davies, 2009). Collective bargaining between trade unions and the company becomes the primary model for contribution at job in UK. The Trade Disputes Act 1906 legalizes the provision of strike. The Trade Union and Labor Relations (Consolidation) Act 1992 make rule for the establishment of trade unions, right of employees, the state of affairs to be satisfied before strike accomplishment etc (Davies, 2012).

Thought in case of labor laws EU laws are similar to UK laws but there are certain differences in this regard. As the above discussion we came to know about the law prevail in the country. EU has some differentiations regarding implementation of rights of employees. Like voting rights regarding the election of directors are not an established principle in the UK domestic laws but it prevails in the EU labor laws. So if this kind of discrepancies arises the law of EU will be taken into consideration (Bercusson, 1996).

EU laws are always predominant over the laws of other European country. The members of the European Union state that whenever there are conflicts in laws the EU will prevail. The legal doctrine emerged from the European Court of Justice. In R v Secretary of State for Transport, ex p Factortame Ltd. (R v Secretary of State for Transport, ex p Factortame Ltd, [1990]),  case the the court stated that judges in the United Kingdom possessed the power to not implement the regulations of parliament where they are in conflict with laws of EU. Some jurist opined that state Parliament had willingly took this boundary of its autonomy, and independence. So they are being fully conscious about the fact there must be limitation to their legal powers.

According to European Community Law whenever a situation of conflict arises between European Law and domestic law of the member states of the EU, the European law prevails highly over the domestic laws. The case law of Flaminio Costa v ENEL (Flaminio Costa v ENEL, [1964]) is a landmark decision of the European Court of justice, which established the law that in further conflict situations the European Union Law will prevail highly over the Domestic law.

Flaminio Costa v ENEL (Flaminio Costa v ENEL, [1964])

The case focused on the Mr. Costa who was an Italian Citizen who owned shares in an electricity company. He refused to pay electricity bill, which amounted to 1925 lire. He was however, sued by the newly created state electricity company for the nonpayment of the remaining amount. The electricity companies change its nationalization. However, the plaintiff demanded that as per the Treaty of Rome and the Italian Constitution the Electricity company could not legally change the nationalization.  However, the electricity company notified that as per the statutory interpretation of the European Union law the electricity company did not make any breach of the law. Thus, the case was dismissed and ruled in favor of the electricity company because the court stated that the Italian court had no command over the rulings of the European Union Law.

Conclusion

Thus, the EU law is considered supreme even over the provisions and legislations of the national constitutions. After the decision of the case of Flaminio Costa v ENEL (Flaminio Costa v ENEL, [1964]), the English law stated that provided that the European law is subjected to discipline and truth the domestic law cannot be implemented.  However, (_) suggested that the EU legislation can be challenged by the domestic state laws. If the domestic law has doubts about the community’s legitimacy on a particular legislative situation then the national law of the European Union will prevail over the state law.

Majority of the European Law is legislated by means of the secondary legislation. In thus resect for the implementation of the EU law the EU firstly makes an initial proposal to the member state. The EU, European council and the EU governments and European parliaments before the amendment then debate over the proposal. The implementation and the effect of the law will depend upon the adoption of the law by the member states. Thus, the implementation process of the EU law is very difficult as the negotiation between the 27 countries each with its own priorities and policies and legal systems along with the different provisions of the EU law is time consuming.

However, for the international EU law to enter into the context of the national paradigm some legal provisions are required. Certain domestic legislation must be enacted by the national parliament in order for international law to enter into national law.  UK in this respect adopts dualist approach to international law and ratifies the international treaties with the help of the domestic law. Thus, UK takes into account the domestic regulations in terms of ratifying the whole process of treaties prevailing within the UK. If the treaties are enacted within the domestic level then the treaties must be incorporated by an act of parliament. With the help of th provisions of the European Community Act 1972, UK adopts the dualist approach in resolving all the case situations by applying both domestic as well as national law. Section 2(4) of this act states norms for the concepts of primacy of the international law over the national or domestic law. The section does not expressly states that European community law is supreme over the domestic law. However, this section states that any enactment that is passed to will be passed in the future will be framed in accordance to the legislations of both national and international laws.

However, there are also certain limits of primacy on the degree of enforcement of the European Community law over the domestic law. Hence in many cases the dualist approach will be applied only if the European community law is directly effective in the case scenario. Otherwise, the states are allowed to follow the domestic laws. Thus there will be no conflict of decision over the issues of domestic and community law interpretation.

Conclusion:

The EU has always the power or position to predominance over the state laws. All the state communities are well versed about the matter that their sovereignty can be restricted if the state law is not according to the law of EU. If any dispute arises then party will get the benefit of EU laws. The laws which are in conflict with EU laws can be invalid in case of any dispute.

References

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